Concerns Raised About Strict Secrecy Provisions In Australian Border Force Act 2015
Monday 15 June 2015 @ 11.39 a.m. | Legal Research | Immigration
Doctors and teachers have raised concerns about provisions in the newly assented Australian Border Force Act 2015 (Cth) that criminalise the disclosure of information about events in detention centres like Nauru and Manus Island. The Australian Border Force Act 2015 was assented on 20 May 2015, and is scheduled to commence on 1 July this year (2015). While the Act mostly deals with legislative changes to implement the merging of the Customs and Immigrations departments into the “Australian Border Force”, concerns have been raised about Part 6 of the Act, which deals with “Secrecy and disclosure provisions”.
The Provisions
Section 42(1) of the Act states that:
- A person commits an offence if:
(a) the person is, or has been, an entrusted person; and
(b) the person makes a record of, or discloses, information; and
(c) the information is protected information.
Penalty: Imprisonment for 2 years.
There are a number of exemptions, including where the disclosed information is authorised or required by law in some way.
The definition of “entrusted person” in section 3 of the Act includes all Immigration and Border Protection workers, and this definition includes people engaged as consultants or contractors to perform services for the Department or anyone employed by those people.
The definition of “protected information” is “information that was obtained by a person in the person’s capacity as an entrusted person” under section 3 of the Act. This extremely broad definition covers all information that a person working for, or in, detention centres would come across.
Criticism
Australian Medical Association president Brian Owler told the Sydney Morning Herald that “this was the first time doctors had been threatened with jail time for revealing inadequate conditions for their patients in immigration centres” and that:
“Clearly if doctors are moved to speak out about issues then they should be able to do so… That's one of the responsibilities that most doctors feel they have. This puts most doctors in these circumstances in a very difficult situation if they have to face two years' imprisonment for speaking out, or be quiet and let people suffer. That's not appropriate."
Doctors for Refugees co-founder Dr Richard Kidd also criticised the provisions, saying:
“It is absolutely clear that doctors and nurses are expected as part of their registration to put the best interests of their patients first and that includes advocating for [people] being denied appropriate health services or being abuse in some way.”
Last year, then Immigration Minister Scott Morrison used section 70 of the Crimes Act 1914 (Cth) to refer 10 Save the Children staff to the Australian Federal Police under accusations they had communicated privileged information to non-Commonwealth workers. The accusations were later dropped.
A spokesperson for current Immigration Minister Peter Dutton said in a press release that there were “appropriate mechanisms for reporting misconduct or maladministration in place”, and that the Public Interest Disclosure Act 2013 (Cth) would provide sufficient protection for officials and contractors who wanted to report maladministration.
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Sources:
Australian Border Force Act 2015 (Cth)
